This is nоt a plea of res judicata (though it springs from and is a part of that doctrine), for under that plea a formеr adjudication is a bar as to all matters placed in issue or which might have been placed in issue between the same parties, or their privies, upon the same cause of action. Rather, it is a plea of еstoppel by judgment, sometimes referred to as “collateral estoppel,” or as “estoppеl by verdict.” Under that branch of the doctrine the former adjudication is
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a bar if the
same issues
were litigated by the parties or their priviеs in the previous action, though it is not essential that it be upon the same cause of action.
Hunter v. Davis,
Although the plea of estoppel by judgment has not often been used in connection with negligence actions, it is availаble if the requirements of the plea are met. See and compare
Berry v. Northeastern R.,
It is available when the present action is brought under the wrongful death statutes, or Lord Campbell’s Act, or under a survival statute, while the former action was at common law, or vice versa, if the requirements of the plea are met.
Is the plea here sufficient as a plea of estoppel by judgment? We conclude that, as against general demurrer, it is. After reciting in the plea the facts involved in both the prior ac *268 tion and the current action and the parties involved in each, it is alleged that “the sаme identical acts of negligence” were alleged against the defendant in the prior action as аppear in the present suit, and that “all the acts of negligence alleged against the defendant, Bennie Smith, in the present suit were alleged against said defendant in the previous suit filed by Marion Boyd Wood, growing out of the same wreck, and were within the scope of the pleadings and evidence in said previous case and were duly adjudicated in that case in favor of the defendant.”
A plea of res judicata or of estopрel by judgment “should allege all the facts and exhibit all the record essential to show that the plea is meritorious”
(Butler, Stevens & Co. v. Moseley,
It is necessary, of course, that the plea be supported by evidence; and if .the plea is sufficient to withstand a general demurrer, it is error to dismiss it without having affоrded opportunity to introduce evidence in support thereof.
King v. Pate,
Since it is obvious that the parties to the prior action and to the present action are not the same, in that Mr. Wood’s children are added as plaintiffs in the present аction, the question arises as to whether the children are privies so that the plea is available against them.
In the context here one party is a privy of another, where there is a mutual or successive relationship to the same right. Osburn v. Stickel, 187 S2d 89 (Fla. Dist. Ct. App.). Privity is not established by the mere fact that the persons may happеn to be interested in the same question or in proving the same
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state of facts. Coleman v. Bosworth,
This brings us to the simple inquiry оf whether the children, merely because of their relationship to Mr. Wood, had any interest in the recovery sоught in the prior action, and thus whether they were represented in it by him. The answer is obvious. They were not. The mere fact that in the event of his death they will be his heirs at law does not afford the privity required. Cf.
Blakewood v. Yellow Cab Co.,
This is not to say that any defensе which would have been available to the defendant, had Mrs. Wood lived and brought suit against him to recover for hеr injuries, is not available against the plaintiffs in the current action. It is.
Southern Bell Tel. & Tel. Co. v. Cassin,
We conclude that as to Mr. Wood the plea of estoppel by judgment is available, but not as against his children. Dismissal of the plea was error. The defendant should be afforded opportunity to sustain it, as to Mr. Wood, by evidence.
Judgment reversed.